AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 1 December 2023

Flentjar v R

[2023] NSWCCA 303

Assault & violenceTraffic & drivingPublic order & justice offences

Citation: Flentjar v R [2023] NSWCCA 303
Court: NSW Court of Criminal Appeal
Date: 1 December 2023
Judges: Wilson J, Fagan J, Sweeney J (Sweeney J delivering the leading judgment)

Background

The applicant pleaded guilty in the Local Court to a series of serious driving and related offences arising from two separate incidents in December 2021 and January 2022 near Wollongong and Berry. The offences included two counts of engaging in a police pursuit, aggravated dangerous driving occasioning grievous bodily harm during an escape from police, failing to stop and assist after a collision, driving while disqualified, and assaulting a police officer.

The second incident was particularly serious. The applicant drove a stolen vehicle at extreme speeds, reaching up to 180km/h in 80km/h zones, on the wrong side of the road and past multiple vehicles. After police deployed road spikes, the applicant's vehicle ran a red light at high speed and collided with an innocent motorist, causing a complex pelvic ring fracture and multiple rib fractures. The applicant then fled on foot, kicking a pursuing police officer in the chest before escaping.

In the District Court at Wollongong, Judge Haesler SC imposed an aggregate sentence of five years' imprisonment with a non-parole period of three years. The applicant sought leave to appeal on a single ground: that the sentencing judge erred by failing to reduce the weight given to general and specific deterrence in light of the applicant's intellectual disability, mental health conditions, background of profound disadvantage, and youth.

  • Whether the sentencing judge was required to reduce the weight given to general and specific deterrence because of the applicant's intellectual disability, mental health conditions, youth, and severely disadvantaged background.
  • Whether those subjective circumstances had been adequately taken into account in the sentencing exercise overall.
  • Whether the sentencing judge placed inappropriate or disproportionate weight on general and specific deterrence in circumstances of such significant personal mitigation.

Decision

The Court of Criminal Appeal, unanimous in dismissing the appeal, confirmed that reducing the weight given to general and specific deterrence in light of mental illness or intellectual disability is a discretionary consideration, not a mandatory one. The Court drew on the established principles in Director of Public Prosecutions (Cth) v De La Rosa and R v Engert, which make clear that such conditions may reduce or even eliminate the significance of deterrence, but may equally point toward increased weight on community protection depending on the nature of the condition and the risk the offender poses.

The Court noted that the applicant's counsel had argued the reduction in deterrence weighting was mandatory. Sweeney J rejected this characterisation squarely, reaffirming that the law requires a discretionary balancing exercise rather than a formulaic reduction whenever certain subjective circumstances are present.

A fair reading of the sentencing remarks, including the passages where Judge Haesler SC expressly addressed specific and general deterrence, did not support a conclusion that his Honour placed particular or inappropriate weight on those purposes. His Honour was found to have been plainly aware of the applicant's tragic and compelling subjective circumstances, including his youth, disadvantaged background, and diagnosed mental health conditions and intellectual disability, and to have taken them into account.

The Court acknowledged the sentencing task was genuinely difficult. The objective seriousness of the offending and the serious physical harm caused to an innocent victim sat in tension with significant mitigation. The applicant failed to demonstrate error in the exercise of that sentencing discretion.

Orders Made

  • Leave to appeal granted.
  • The appeal dismissed.

Key Takeaways

  • Reducing the weight given to general and specific deterrence because of an offender's mental illness, intellectual disability, or disadvantage is a discretionary sentencing consideration, not a mandatory one, as confirmed in De La Rosa and Engert.
  • Where an offender presents a significant danger to the community, considerations of specific deterrence may in fact support an increased sentence, even where mental illness or disability is present.
  • A sentencing court is required to weigh all purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) simultaneously, and no single purpose automatically overrides others.
  • In dismissing the appeal, the Court of Criminal Appeal found no error where the sentencing judge had expressly engaged with the applicant's subjective circumstances and made genuine findings about them, even without explicitly stating in terms that deterrence had been reduced in weight.
  • Compelling personal mitigation does not, of itself, establish appellable error when the sentencing judge has demonstrably balanced competing sentencing purposes in a complex case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 51B(1), 52(4), 52AB(2), 60(1)
- Road Transport Act 2013 (NSW), s 54(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- R v Engert (1995) 84 A Crim R 67
- R v Millwood [2012] NSWCCA 2
- Whyte v R (2002) 55 NSWLR 252; [2002] NSWCCA 343